Cancellation of South Carolina State Courts Monday October 5, 2015

If you practice in state court in South Carolina, you need to be aware of yesterday’s order from the South Carolina Supreme Court canceling state court today due to the flooding. We suggest you read the full text of the order to learn how it might affect you.

The full order is as follows:

 Pursuant to the provisions of S.C. Const. Art. V, §4, I find that flooding throughout the state has caused hazardous travel conditions. In consideration of the safety and well being of court participants, I find it necessary to issue this order.

IT IS ORDERED that proceedings in the Supreme Court, Court of Appeals, Circuit Court, and Family Court are cancelled statewide on Monday, October 5, 2015. All S.C. Judicial Department employees are excused from reporting to work on Monday, October 5, 2015. This includes SCJD employees statewide and in the Supreme Court and John C. Calhoun buildings. All county and municipal employees working within the court system shall follow the weather hazard decisions made by the respective county or municipal government officials in regards to office delays or closings. Master-in-Equity courts shall follow the weather hazard decisions made by the respective county officials, however, court may be cancelled if conditions are hazardous.

Regarding bond hearings and court closures due to inclement weather, a minimum of one bond hearing daily should be conducted, if conditions are safe to do so. Any local curfews should be adhered to. If the weather permits adherence to the regular bond hearing schedule and conditions are safe, the regular bond schedule should apply.

The provisions of this Order are effective immediately.

You can read the order on the court’s website here.

Friday Links


Well, it’s October, so we would remind everyone to listen to U2’s October to celebrate. Not too long ago, a gaggle of our attorneys trekked from Greenville, South Carolina to Atlanta, Georgia to see U2 perform live in concert at the Georgia Dome. How’s that for firm culture?

Our own Nick Farr had an opinion piece run in the Greenville News today. Here is the first paragraph:

It often appears as if we live in a divided world. Whether it be television, radio or social media, stories of conflict and division are at the forefront. Every report seemingly draws a line in the sand, asking us to choose a side while the creation of the “us” versus “them” mentality breeds the conflict necessary for the next big news store. And, so the cycle continues.

For the rest of the article, please see here.

You know, we’ve heard about the McDonald’s hot coffee exhibit at Ralph Nader’s new museum. We are investigating.

Our favorite legal tweet of late:

Will My Advocate Opponent Impeach Me With My Own Legal Social Media?

Once a rarity, the topic of social media now seems ubiquitous on the agendas of CLEs and conferences across the land.  So much so, in fact, that entire seminars are now dedicated to the challenges faced by lawyers communicating on-line with both themselves and their clients.

At many such conferences, there are handfuls of doomsayers who warn of the great risks that attorneys take when communicating on-line with, well, anyone.  Some of these prognosticators of peril are in positions of authority in state bars across the country, and thus, their remarks prompt great reflection about such risks.  Generally, though, these speakers always seem to trot out the worst case scenarios, including the foolish Illinois public defender who blogged confidential client information (and even suggested in her online writings that she may have perpetrated a fraud upon the court).  There are a handful of other examples far outside the mainstream of lawyer bloggers who, for the most part, conduct themselves professionally.

At a recent conference at the North Carolina Bar Association headquarters in Cary, I heard a new and much more interesting critique of legal blogging.  A seasoned litigator panelist suggested that whenever she is to appear in court against another lawyer, she always investigates whether that opponent maintains a law blog.  If so, she will scour and scrutinize those posts to see if her opponent has ever taken a position opposite to the one advanced against her in the case at hand.  If she finds evidence of such, she can alert the tribunal that her opponent has taken a contradictory position on the relevant law in the past when writing, presumably objectively, on a legal blog. This is, for lack of a better term, impeachment in court by one’s own law blog.  Ouch.

But this does not seem to be a risk of legal blogging specifically but rather communicating one’s ideas and views generally.  For decades and decades and decades before the advent of legal blogs, lawyers delivered speeches, made presentations to trade and legal groups, and authored law review articles.  Sure, that may have been before everything was neatly placed online, easily searchable, and simple to locate in seconds, but there have always been ways in which one lawyer can find the writings of another if that lawyer knows where to look. Like most things, though, that task has been made far, far easier in the digital age, though it could be done before.

Further, what is the likelihood that one lawyer will be writing blog posts that can later be used against him in court?  Interesting question.  Certainly, if one were an author of, say, a defense oriented law blog, it is unlikely that the lawyer author will provide much fodder for plaintiff’s attorneys, and vice versa.  (If I ever square off in court against friend of the blog and Plaintiff’s lawyer Maxwell Kennerly in court, I doubt any of his past blog posts will help any of my defense arguments.). Perhaps there are questions of procedure that might be turned around on one depending upon the circumstances, but certainly there will always be some way for the lawyer blogger to differentiate his or her own thoughts on a reported judicial opinion which is later at issue in a case litigated by him/her.  Anything, after all, can be distinguished.

In sum, one should not leave these conferences fearing that any and all uses of the Internet will rain down discipline upon them.  Rather, an attorney who responsibly adheres to the rules of disciplinary conduct can blog to share his or her insights with lawyer readers or the general public.  Likewise, we should realize that the risk that we might later be “impeached” by our own past blog posts in court is too minimal to take into account.

(This post was originally posted on the now defunct North Carolina Law Blog on February 2, 2012).

Can Emoticons Beat the Hearsay Rule?

The question for today: Might emoticons assist in a hearsay inquiry?

That’s right. I just wrote that.  Let’s back up a bit and I’ll explain why that’s on my mind.

Carole Gailor of Raleigh, North Carolina recently spoke at a North Carolina Bar Association conference on the rules of evidence as applied to electronically generated information.  In so doing, she remarked upon the authentication and admissibility hurdles that litigants must confront when attempting to introduce electronic or digital evidence, such as emails, computer generated reports, social media profiles, and other such information.  However, she made a stray remark which prompted the law nerd in me to take particular notice.  Ms. Gailor noted that an emoticon might, in fact, assist in the analysis of whether a digital piece of evidence is admissible.

As a preliminary matter, we could turn to Wikipedia or Urban Dictionary or the like to find a formal definition of the term “emoticon.”  But that’s not really necessary, is it? But everyone knows that they are the little smiley or frowny faces – or sometimes far more complex textual graphics – utilized by writers on the Internet to convey all sorts of present emotions.

But why bother with a lay definition? A number of courts have already tackled the term.

A Westlaw search reveals that there are 26 reported state and federal cases which reference the word “emoticon” in the singular or plural, the earliest citation coming from 2004.  A handful of them cite to United States v. Cochran, 534 F.3d 631, 632 n.1 (7th Cir. 2008), which itself cited the Merriam Webster online dictionary. The most recent is this year’s State v. Jacques, 798 N.W.2d 319 (Table), at *1 n.2 (Wis. Ct. App. 2011) (per curiam). (“An ‘emoticon’ is a ‘group of keyboard characters … that typically represents a facial expression or suggests an attitude or emotion and that is used especially in computerized communications’ such as e-mail or instant messaging.”) (citing Cochran). There are other cases, as well. State v. Nero, 1 A.3d 184, 191-92 n.9 (Conn. Ct. App. 2010) (“An emoticon, as it is called in Internet vernacular, is a little cartoon face that can be added to the text of an instant message. The faces come in numerous expressions and are used to illustrate how the speaker is feeling or the intended meaning of what he or she has written.”); State v. Prine, 13 So.3d 758, 761 (La. Ct. App. 2009) (noting that an emoticon is “an online mode of expressing emotion”); Spanierman v. Hughes, 576 F. Supp. 2d 292, 312 n.13 (D. Conn. 2008) (defining emoticons as “symbols used to convey emotional content in written or message form (e.g., ‘:)’ indicates ‘smile’ or ‘happy,’ and ‘:(‘ indicates ‘frown’ or ‘sad’).”).

Most of these definitions state pretty clearly that the emoticon, by its very nature, is designed to convey the emotional state of the author of the statement which it accompanies.

The interesting question raised by Ms. Gailor is whether emoticons, in providing the recipient with a precise state of mind of the sender, aid in the admissibility inquiry.

Let’s turn briefly to the Federal Rules of Evidence.  Where might emoticons be relevant?

What about a “Then-Existing Mental, Emotional, or Physical Condition” under Rule 803(3), defined as “[a] statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.”?

That’s certain possible, and it might be that an emoticon could provide the statement with additional context to overcome a hearsay challenge.  If you could define or interpret the specific emoticon and argue that it established “then existing state of mind” or “mental feeling,” you might convince the court that the declarant’s statement can come into evidence.

Here’s a more fun one. Might an emoticon indicate that a statement is an “excited utterance” under Rule 803(2), defined as “[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused”?  Maybe.  That’s a bit trickier, because usually an excited utterance is spoken, not written. When excited, agog, or what have you, what declarant will pause to write a note? However, in the past decade, the deliberate nature of a writing has become, shall we say, far more casual in the era of text messages, Facebook, Twitter, and the like. The spontaneity of instant messages, texting, tweeting and other such forms of new communication make it more likely that a communication is truly instant.

In 1998, a Massachusetts court focused on the issue of whether a particular writing, a fax sent several hours after an assault and battery, could be a spontaneous exclamation and thus not barred by the hearsay rule.  Commonwealth v. DiMonte, 692 N.E.2d 45, 48-49 (Mass. 1998). In so doing, the court noted:

The defendant argues that the acts of drafting and transmitting a facsimile message deprive it of the spontaneity required by the hearsay exception for spontaneous exclamations. Writing, he contends, is an inherently premeditated process; manipulation of a facsimile machine, once a message is written, is an additional deliberated sequence of actions. He further argues that the recipient of a written message has no percipient experience of the sender at the moment when she writes and sends the message, and cannot testify to the sender’s demeanor, tone of voice, or degree of observed excitement or stress. The arguments are persuasive.

Those concerns – written when the communications infrastructure in place was far, far different than that of today’s are now 13 years old. Wouldn’t an emoticon provide some context in lieu of the percipient experience of the sender at the moment of the writing? Wouldn’t the instant nature of text messages or digital writings ameliorate the issues addressed by the court?

Now all we need is a text case.

(This post was originally posted on the now defunct North Carolina Law Blog on December 7, 2011).

Friday Links

Sales of compact discs may be falling dramatically, but we here at Abnormal Use still but them. See here for the troubling news on this sales trend.

As you may know, the Perrin Asbestos Litigation Conference begins this weekend in San Francisco. Our editor, Jim Dedman, will be there, so if you see him, say hello!

We are pleased to announce that Gallivan, White, & Boyd, P.A. shareholder John T. Lay, Jr. has been named president-elect of the International Association of Defense Counsel (IADC).  The IADC is the preeminent invitation only legal organization for attorneys who represent corporate and insurance interests throughout the world. Lay will serve as president-elect from July 2015 until he is named president in July 2016.

Our favorite legal tweet of late is an oldie, but it’s a goodie:

The Evolution of Legal Mobile Devices

I have been practicing law for ten years now, but I remain reluctant to offer tales of how the profession used to be.  Ten years is not an eternity. Besides, there are lawyers out there who have been practicing thrice as long as I have, or more.  But when I first began to practice, way back in those halcyon days of 2002, lawyers were just beginning to use both the Internet, mobile devices, and such regularly in their daily routines.  So too were lawyers then integrating modern cellular telephones into their practice (although, of course, there were those early adopters with car phones and those terribly inefficient and wonderfully obsolete bag phones).

Recently, I spoke with a younger lawyer about mobile devices, and whether that young lawyer should purchase the new iPhone 5, an Android, or what have you, even an iPad or laptop.  I couldn’t help but laugh, because it reminded me of a fateful trip that I took, circa 2005.

At that time in my career, I was practicing with a firm in Texas, and I was traveling a good bit.  As fate would have it, my travels took me to Colorado – for the first time.  I remember arriving at my hotel, after flying from Texas to Denver and having to unpack all of my technology.

Of course, I owned a Blackberry, which at that time, did not have the ability to access the Internet beyond email.  Further, I had a second generation iPod, which, of course, was far more bulky than its modern day descendants.  (Even then, air travel, and the accompanying bustling about required by it, was intolerable without one’s iPod.).  Also, I had my own phone, one of those now archaic flip phones, which was required because the Blackberry telephone service was too expensive for my firm to reimburse, and thus, too expensive for me, and so I had my own phone with its own personal calling plan.  Finally, I had a laptop, which was required for more substantive work, as I could not access PDF or Word documents on my Blackberry.

I remember pausing as I unpacked these materials and thinking how ridiculous it was that I was forced to carry about so many items, all of which required their own separate and distinct charging cords.  So, I spent the next fifteen minutes finding electrical outlets in which to plug the charges for these devices.  As you can imagine, during the flight, all of the chargers and cords became intertwined, making the untangling enterprise as frustrating as possible.

Now, seven years later, I simply carry my iPhone and my iPad with me.  The iPhone alone is probably sufficient, and sometimes, I leave behind the iPad, but it’s amazing that all of those ancient devices are now merged into one with our new smart devices, whatever those may be.

Today’s young lawyers of today will never know that hassle.  And the lawyers of my generation will never know how frustrating it must have been to carry around all those reams of paper required when traveling in those fateful days of yore before mobile devices and laptops.  Yikes.

(This post was originally posted on the now defunct North Carolina Law Blog on Friday, November 9, 2012).

Friday Links


Above, you’ll find the cover of Star Wars #1, published way, way back in 1977 (the year the first film was released). We’ve been thinking about Star Wars a good bit lately in light of the imminent release of The Force Awakens. Question: When the new Star Wars film is released on December 18, will that day considered to be a billing holiday? Surely law firms large and small will all be closed that day to allow their employees to trek to the cinemas? If not, how will employee morale be affected? By the way, you can revisit our favorite Star Wars post (in which we question the legitimacy of the prequels in an April Fool’s Day post) by going here.

If you appear in South Carolina Courts via pro hac vice (or sponsor those who do), you may need to know this news. On September 9, the South Carolina Supreme Court amended the Verified Application for Admission Pro Hac Vice. To read the amendments, click here.

Our favorite legal tweet of late concerns that most frightful of courtroom scenarios:

South Carolina Supreme Court Establishes Civil Motions Pilot Program

Last week, the South Carolina Supreme Court established a Civil Motions Pilot Program to begin next month governing motion practice in the Third and Fifteen Circuits. Basically, the order follows the form of the federal rules. The pilot program will require contemporaneous memoranda in support of motions, and opposition papers to be filed within 30 days. It also features a number of new formal requirements. If you practice in those circuits, you’ll need to follow the new rules. Even if you practice elsewhere, you may wish to consider the new rules as some evidence of what the South Carolina Supreme Court believes to be best practices. You can read the court’s order here.

Behold! The Taylor Swift Complaint!

You know, we here at Abnormal Use could remark or otherwise opine upon the new lawsuit against Taylor Swift. We could analyze the potential motives of the deejay who has filed the suit and claimed that he was falsely accused of groping the pop star. We could comment upon the three causes of action asserted therein (intentional interference with contractual obligations, tortious interference with prospective business relations, respondeat superior) and gauge the likelihood of success. Or we could embed the amended complaint below so that you could read it yourself (as we did here at the office yesterday). Note that the case has since been removed to federal court in Colorado, and the live version of the complaint is that from state court. Enjoy!

David Mueller v. Taylor Swift, et al – Amended Complaint

Friday Links

Today, of course, is the fourteenth anniversary of the September 11, 2001 attacks. In light of that somber anniversary, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. pause to reflect on the day and the lives lost. We also direct your attention to a prior post in which we quoted the words of Baylor Law School professor Gerald Powell who, in a commencement speech in February 2002, offered these words:

You can no longer focus on just yourself, on your career, or even on just your own family.  More will be asked of you.  As Americans, and especially as lawyers, you will carry with you great responsibilities.  After September 11, each of you must be willing to stand guard over our liberty, to serve your country selflessly, and, if the need arises, be a hero.

Each of us must take our turn as sentinels.  And as lawyers we have our own post to man.  Our watch is over the Constitution.  Our perimeter is the outposts of liberty.  Our weapon is the law.  Our mission is to see that justice is done.

[W]e also hope that each of you will have inside of you that seed of heroism perhaps dormant until a moment of truth, when it will spring forth in the energizing light of adversity to give us the hero we need.  And until that time comes, or whether it ever comes, we hope and pray that you will act heroically in the conduct of your everyday lives, professional, public and personal.

You can read our post on the tenth anniversary of 9/11 here.